United States District Court, E.D. New York
TIMOTHY MONZERT, STEVEN GASSERT, and WAYNE PINSENT, Plaintiffs,
SAUL M. ROOND, in his official and individual capacity, Defendant.
JONATHAN A. TAND & ASSOCIATES, P.C. BY: Gary R. Novins,
ESQ. and Jonathan A. Tand, ESQ. Attorney for Plaintiffs.
M. Roond, Defendant Pro Se.
MEMORANDUM AND ORDER
LEONARD D. WEXLER UNITED STATES DISTRICT JUDGE.
filed their complaint in this 42 U.S.C. §1983 action
alleging violations of their constitutional rights of free
speech and equal protection by defendant Saul M. Roond
("Roond"). Roond, formerly a Commander of the
Federal Protective Service ("FPS"), is named in
both his official and individual capacity as a federal
officer pursuant to Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). A state
law breach of contract claim asserted against defendant
United Security, Inc. ("USI") was dismissed without
prejudice by Order dated June 21, 2016. Currently before the
Court is Plaintiffs' request for permission of an
extension of time to serve the United States. For the reasons
set forth below, that request is denied and the case is
dismissed without prejudice.
complaint was filed on May 23, 2014. At the time this action
was commenced, Rule 4(m) of the Federal Rules of Civil
Procedure required service on a defendant within 120 days
after the complaint is filed, in this case by September 22,
2014. After several failed attempts at personal service,
plaintiffs completed "nail and mail" service on
Roond on September 22, 2014. As Roond was sued in his
individual capacity for acts occurring in connection with his
duties as an employee of the United States, service upon the
government was also required. Fed.R.Civ.P. 4(i)(3). It is
undisputed that plaintiffs never attempted to serve or
completed service upon the United States.
the dates of service upon USI and Roond in 2014 until
mid-2016, the activity in this litigation solely concerned
USI's motions to dismiss. Despite his failure to answer,
plaintiffs did not seek entry of a default against Roond.
21, 2016, USI's motion to dismiss was granted. Another
six weeks passed with no action taken by plaintiffs to
prosecute their case against Roond. After the Court directed
submission of a status report, plaintiffs responded that they
"intend[ed]" to "enter judgment" against
Roond. Ltr. of 8/5/16, DE .
August 18, 2016, this Court held a status conference.
Plaintiffs again represented that they intended to move for a
default judgment. On September 6, 2016, nearly two years
after completing service upon Roond, plaintiffs finally
requested a certificate of default against him. They provided
various affidavits supporting their belief that Roond had
been properly served. Roond contested this request, arguing
inter alia that plaintiffs had failed to also serve
the United States as required by Rule 4(i)(3) of the Federal
Rules of Civil Procedure. Plaintiffs did not address the
issue of service upon the United States in their opposition
to Roond's motion, nor did they seek permission from the
Court to make such service.
Order dated December 6, 2016, this Court ruled that while
service upon Roond was sufficient, the plainiffs' failure
to serve the United States as required warranted denial of
the issuance of a certificate of default. See Order,
DE . The Court further noted that the time limit for
service had long since passed, and scheduled a conference to
"allow plaintiffs an opportunity to seek an extension of
the time to serve upon a showing of good cause."
Id. Plaintiffs were further warned that failure to
establish good cause would result in dismissal of the case.
The parties appeared as directed on December 22, 2016, oral
argument on plaintiffs' request for additional time to
serve the United States was heard, and the Court reserved
decision. Plaintiffs and Roond have submitted post-argument
to Rule 4(m), the Court must dismiss an untimely served
complaint, but must extend the time for service "if the
plaintiff shows good cause for the failure" to timely
serve. Fed.R.Civ.P. 4(m). Plaintiffs base their request for
more time not on Rule 4(m), but rather on Rule 4 (i)(4)(B),
which provides that "[t]he court must allow a party a
reasonable time to cure its failure to ... serve the United
States under Rule 4(i)(3), if the party has served the United
States officer or employee." Plaintiffs argue that the
validity of service upon Roond was not "placed in
issue" until Roond made his motion on September 13,
2016, and the Court did not find service upon Roond
sufficient until the Order dated December 6, 2016. Thus,
plaintiffs suggest, their obligation to either serve the
United States or to request an extension of time to effect
such service did not arise until December 6, 2016.
suggestion that plaintiffs' obligation to serve the
United States did not arise until service upon Roond was
completed is not supported by a plain reading of the Rule.
Rule 4(i) states that a plaintiff "must serve the United
States and also serve the officer or employee, "
Fed.R.Civ.P. 4(i)(3), but does not set forth a required
sequence of service. Thus, plaintiffs' obligation to
timely serve the United States arose with the filing of the
complaint and was not affected by the timing of service upon
the timing of a request for an extension of their time to
serve the United States under Rule 4(i)(4)(B), plaintiffs
argue that they "would only be able to request an
extension of time under Federal Rule 4 (i)(4)(B) if the Court
determined that Roond had in fact been individually
served." DE . Plaintiffs' rather convoluted
argument seems to be that service was not
"complete" upon Roond until the Court issued its
ruling on December 6, 2016 finding that service sufficient,
and that they are entitled to a "reasonable time to
cure" as of that date. The Court finds no basis for such
an interpretation in the Rules, and no formal Court ruling on
the sufficiency of service is required before an individual
defendant is deemed to have been served. Indeed, plaintiffs
clearly believed they had completed service upon Roond in